November 8, 2002

Commentary

What Does the GOP Sweep Mean to the Estrada Nomination?

By Victor Menaldo

Last September, Miguel Estrada faced contentious Senate Judiciary Committee Hearings. But this was before President Bush received what many pundits call a historical mandate in the midterm elections held on November 5th, when the Republican Party regained control of the Senate and increased their numbers in the House. Yet, the reason why Bush nominated Estrada to the 10th Circuit (D.C. Court of Appeals) still stands: mainly because this court has been proven itself as the premier holding pen for future Supreme Court Justices. Like all good partisan-presidents (forgive the oxymoron), of conservative persuasions, Bush wants to tip the ideological balance of the courts as far to the right as possible.

Moreover, the 10th Circuit is the second most influential court in the nation, second only to the Supreme Court; so that a great deal of important policy is sanctioned by this court, what many call the D.C. circuit court. And now, with the pending inauguration of the 108th Congress, all Bush needs is for a majority of senators to approve Estrada, once a friendlier Senate Judiciary Committee replaces the lame duck Committee currently in place and brings Estrada to the floor for a vote.

During Estrada’s September hearings, the Democratic controlled Senate Judiciary Committee took its sweet time vetting Bush’s nominees, confirming only 60 percent of them and blackballing most of them as “too conservative.” Therefore, last September Estrada’s appearance on the Hill was only ostensibly designed to have his judicial credentials reviewed by the Senate Judiciary Committee. In reality, his appearance was an opportunity for Latino groups to gauge if Estrada’s Latino surname represents the full extent of his Latino identity.

The National Hispanic Caucus grilled Estrada about his contributions to the Latino community — or, more accurately, lack of contributions — and sought to discern whether Estrada supports those issues that are, putatively, valued by all Latinos. The members of the Caucus were adamant and at times incendiary; but this was no big surprise. In fact, with so much riding on the judicial selection process, drama and intrigue have come to be an essential component of Senate Judiciary Hearings.

Since time immemorial, judges have been envisaged as the representatives of political views in America and, by extension, as the standard bearers of the constituencies who hold these views. As such, it follows that in the judicial selection process many advocate to consider a judge’s gender, race and socioeconomic background. Race, gender and socioeconomic background in America mold beliefs and beliefs eventually mold the law itself.

However, in Estrada’s case, as with Clarance Thomas before him, it is wrong to assume that his race (or, more accurately, his ethnicity) is indicative of his political values. And to make this point clear, Estrada’s Latino brethren have chosen to impugn Estrada’s ideological disposition directly, instead of focusing on qualifications or competence. This is, incidentally, a strategic move, because Estrada’s case qualifications are impressive.

Estrada is a much-vaunted private attorney. He is a Phi Beta Kappa with a degree from Harvard Law School, who just happens to espouse very conservative views. Consequently, liberals and even moderates are scared that if a Supreme Court Justice retires during Bush’s term in office, Estrada will be nominated to the Supreme Court, accepted and will vote to overturn a woman’s right to choose.

It is no surprise that when the Democrats had control of the Senate they vehemently pushed for a thorough “ideological review” of the candidates that had have thus far passed before the Senate Judiciary Committee. The Democrats’ focus on ideology rather than ethics, competence or temperament, was a naked confirmation of the role of politics on judicial nominations. Yet, perhaps the true political significance behind Estrada’s nomination lies elsewhere.

Latinos will soon be the nation’s largest minority group, so Estrada’s nomination and his concomitant inquisition by leading Latino groups on the Hill was packed with extra political significance. And this staunchly conservative immigrant from Honduras is the apple of Bush’s ever-compassionate eye.

Whether the Democrats admit it or not, Latinos are by and large an incipient constituency that has not yet been fully mobilized by the Democratic Party. For one, Latinos tend to cross party lines: they are patently socially conservative and, in going against America’s traditional ideological grain, they are progressive on economics and civil rights. However, since November 5th the Republicans, not necessarily the Democrats, may perk their ears every time they hear Mariachi music emanating from loudspeakers. In Florida, Jeb Bush’s fluent Spanish and his Spanish speaking children, who are Latino by way of his Mexican wife, mobilized the so-called Latino Vote in Florida, aiding in his successful reelection bid.

In a way, progressive Latino groups’ disavowal of Estrada was a precursor to a grander strategy by liberals: to clearly demarcate the political lines in the sand now, rather than after Latinos become the nation’s largest minority group later down the road, in 2050. Yet, by the same token, Democrats may be taking the Latino Vote for granted and it may come back to haunt them. More often than not, one hears a Latina voter say that she feels slighted by Democrats, who often tend to take minority voters for granted. And if President Bush’s popularity grows, buoyed by the rubberstamp he now enjoys in Congress, Latinos may choose to side with the winners and contribute to a Bush landslide in 2004.

On the other hand, Democrats have capitalized on the fact that Latinos have become racialized by de-facto segregation, their staggered assimilation into mainstream culture and, of all things, the proliferation of Latino awareness by the Census and the culture. Therefore, it is the hope of Democrats, who reject Latino conservatives like Estrada, that Latinos will continue to follow the African American political model: steadfast allegiance to Democrats.

Yet, whatever the ideological values held by Latinos, the notion that Estrada is too conservative begs a broader question about the judicial system. Can the political influence of law reach so far as to make life in America more conservative, or, alternatively, more liberally-oriented? And if judges who interpolate their own value judgments into judicial decisions politicize law in the process, shouldn’t law be prevented from being politicized? What happened to the time-honored notion that justice is blind?

Although the judiciary in America is a seemingly elevated and apolitical body that stands above the fray, at the end of the day it is a political instrument redolent with political machinations. The legal decisions generated by the circuit courts and the Supreme Court inform the laws that shape our daily life and provide us with our daily bread. The courts’ eclectic decisions ramify into myriad branches of American life. These include personal decisions, like divorce litigation and abortion, social phenomena, like the future of the public’s access to copyrighted works of music that are cultural mainstays and economic patterns, like the responsibilities that recently bankrupted and discredited companies have to the investors that they defrauded during the 90’s boom.

In this sense law is, for better or worse, a political instrument. It sustains and shapes America’s extant political institutions and defines important relationships in civil society. Thus, it behooves Latinos to acquaint themselves with the judicial nomination process, to understand the workings of the Supreme Court and to vote their conscience, aided by knowledge about the laws of the (perhaps their new) land.

(Victor Menaldo is a graduate student at Claremont Graduate University studying for his Masters Degree in Political Economy)

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